Opinion
3:23-cv-01396-HZ
06-19-2024
JORGE R. SIERRA, Plaintiff, v. SIS OFFICER MORENO, CAPTAIN J. CERONE, WARDEN JACQUEZ, and GRIFFIN, Defendants.
Jorge R. Sierra, Pro se Benjamin T. Hickman, Susanne Luse Attorneys for Defendants
Jorge R. Sierra, Pro se
Benjamin T. Hickman, Susanne Luse Attorneys for Defendants
OPINION & ORDER
MARCO A. HERNANDEZ, UNITED STATES DISTRICT JUDGE
In his Third Amended Complaint (“TAC”), pro se Plaintiff Jorge Sierra brings claims against various prison officials related to his conditions of confinement. ECF 12. Plaintiff moves for partial summary judgment on his claims. ECF 49. Defendants move to dismiss all claims for lack of subject matter jurisdiction. ECF 52. For the following reasons, the Court grants Defendants' Motion and therefore denies Plaintiff's Motion as moot.
BACKGROUND
The Court takes the following facts from the TAC, which is the operative complaint in this case. ECF 69 (striking Plaintiff's Fourth Amended Complaint for failure to comply with Rule 15). Plaintiff alleges that he arrived at Federal Correctional Institute (“FCI”) Sheridan, run by the Bureau of Prisons (“BOP”), on June 15, 2023, and informed staff that he was a gang dropout. TAC ¶ 23. He was taken to the Special Housing Unit (“SHU”) for protective custody. Id. Defendant Moreno spoke with Plaintiff on July 5, 2023, and Plaintiff told him that he could not be around any active gang members because they would “jump” him. Id. ¶ 24. Defendant Moreno told Plaintiff that he would still be placed in general population. Id. Plaintiff feared for his life, so he wrote to prison staff about his fears. Id. ¶ 25. “Plaintiff was seen by Psychology Dr. Schneider. Plaintiff had a panic attack while informing her about his fear to go out to general population.” Id. ¶ 26.
On July 31, 2023, Defendant Moreno brought Plaintiff to the SHU recreation yard. Id. ¶ 27. Plaintiff asked him some questions, and Defendant Moreno swore at him and told him to shut up and said he did not care what happened to him. Id. Defendant Moreno told Plaintiff he would remain in the SHU for over six months and receive three infractions for refusing to work or program. Id. ¶ 29. He told Plaintiff he would have Plaintiff sent to another active yard. Id. Plaintiff again wrote to prison staff about his fears, but no one responded. Id. ¶ 30. He “suffered from depression, anxiety, and panic attacks from the threat from Defendant Moreno and from not being able to get help from anyone.” Id. ¶ 31.
On September 13, 2023, Plaintiff was taken to speak to a psychologist, Mr. Bindle. Id. ¶ 32. He had a panic attack and asked what the point of living was if he would be sent somewhere that he would be killed. Id. Plaintiff told Mr. Bindle he did not have any thoughts of suicide. Id. ¶ 33. He was taken back to his cell and continued to fear for his life. Id. ¶ 34. He tried to do activities with his cellmate but continued to be depressed. Id. ¶ 35. While his cellmate was asleep, Plaintiff took apart two razor blades, and swallowed one of them. Id. ¶ 36. When he did not die, he swallowed another “because he thought this time it would end his life.” Id. ¶ 37. His stomach began to hurt, and he threw up blood. Id. He told his cellmate what he tried to do, and his cellmate called staff for help. Id. ¶ 38. Plaintiff was taken out of his cell and questioned; he said he did not want to live just to be taken to another facility with active gang members where he would be killed. Id. ¶ 39.
Prison staff called an ambulance, which took Plaintiff to the hospital on September 14, 2023. Id. ¶ 40. Plaintiff was handcuffed to a gurney and placed in leg shackles. Id. ¶ 41. He was humiliated. Id. X-rays showed two razors in his stomach. Id. ¶ 42. He waited in an intake room. Id. ¶ 43. Around 5 am on September 15, 2023, a nurse told Plaintiff and the correctional officers that Plaintiff would be admitted to the hospital and undergo surgery. Id. ¶ 44. About an hour later, Defendant Griffin arrived and was briefed. Id. ¶ 46. Around 7 am, medical staff came to take Plaintiff to a prep room. Id. ¶ 47. Plaintiff asked to use the restroom but was given a cup to urinate in. Id. ¶ 48. Defendant Griffin accompanied Plaintiff and tightened his handcuff. Id. When Plaintiff told him that the cuff was too tight and it hurt, Defendant Griffin responded that it seemed fine to him and that next time Plaintiff should “try to hold it in.” Id. ¶¶ 48-49. Plaintiff again asked him to loosen the cuff; Defendant Griffin ignored him. Id. ¶ 49.
Plaintiff underwent surgery and woke up with pain in his throat and left hand. Id. ¶¶ 5051. Medical staff told Plaintiff that they could not recover the razor. Id. ¶ 52. Plaintiff was afraid to ask for help after Defendant Griffin did not loosen the handcuff. Id. He was taken to a room, where he asked Defendant Griffin to loosen the handcuff. Id. ¶ 53. Defendant Griffin responded, “Next time don't swallow razors.” Id. Plaintiff apologized and asked for the cuff to be loosened. Id. ¶ 54. Defendant Griffin tried to loosen the handcuff, but it only tightened more, and Defendant Griffin said that the key did not work. Id. Plaintiff asked to use the restroom, and Defendant Griffin left the cuff on his wrist but detached it from the bed so Plaintiff could go. Id. ¶ 55. When Plaintiff returned to the hospital bed, he again asked Defendant Griffin to loosen the handcuff. Id. ¶ 56. Defendant Griffin told Plaintiff it might have broken, so he would have to wait for prison staff to arrive. Id. Plaintiff continued to feel pain from the cuff. Id. ¶ 57.
A doctor arrived and told Plaintiff that he might need stomach surgery to remove the razor blades. Id. ¶ 58. Hospital staff told prison staff about the handcuff malfunction around noon that day. Id. ¶ 59. Defendant Griffin tried to quickly remove the handcuff but was unsuccessful. Id. Prison staff arrived at the hospital and finally managed to remove it around 3 pm with bolt cutters. Id. ¶¶ 60-61. Plaintiff's hand had a cut on it from the handcuff. Id. ¶ 61. Medical staff asked Plaintiff if he wanted pain medication. Id. Plaintiff worried he would be punished if he asked for help. Id.
Plaintiff was discharged from the hospital on the afternoon of September 16, 2023. Id. ¶ 62. When he arrived at the prison, he was placed on suicide watch and given a smock to wear. Id. ¶ 63. He felt degraded, and he was too cold. Id. He was sent back to the SHU on September 18, 2023, after speaking with psychology. Id. ¶ 64. Plaintiff told medical staff that his wrist hurt and he wanted to be seen, but he had to send four requests and was not seen for about a month. Id. ¶ 65. Plaintiff saw Dr. Ayala, who was on the prison medical staff; Dr. Ayala told Plaintiff that the handcuff seemed to have caused nerve damage and that surgery could fix it. Id. ¶ 66. Dr. Ayala prescribed ibuprofen and duloxetine. Id. ¶ 67.
Plaintiff received three infractions for failure to program or work even though his refusal to participate was based on his fear of being in general population. Id. ¶ 68. On October 4, 2023, a disciplinary hearing officer disallowed good time of twelve days and imposed loss of commissary and visiting privileges as punishment for refusal to go into general population. Id. ¶ 69. Plaintiff's mail was also held for weeks with no explanation. Id. ¶ 70. He did not receive his Christmas package in December 2023. Id. ¶ 77. Plaintiff appealed the infractions to the regional director of BOP. Id. ¶ 71. He wrote to the Department of Justice about Defendant Moreno's actions. Id. ¶ 72.
In the TAC, Plaintiff seeks an injunction “to be sent to a dropout yard and to bar Plaintiff from being sent to any active yards in the future.” Id. ¶ 90. He also asks for the three infractions to be expunged from his record, for all good time credits he might have received, and for the Christmas package he did not receive. Id. ¶¶ 91-93. He asks for Defendants to be held liable for their actions. Id. ¶ 94. He also seeks damages against Defendants Moreno and Griffin. Id. ¶¶ 95100. Finally, Plaintiff seeks “a computation of his sentence.” Id. ¶ 101.
Plaintiff filed his original Complaint on September 25, 2023, and moved to proceed in forma pauperis (“IFP”). ECF 1, 2. He filed the First Amended Complaint on October 12, 2023. ECF 4. The Court denied Plaintiff's motion to proceed IFP and gave him leave to file a Second Amended Complaint (“SAC”). ECF 6. Plaintiff timely filed a SAC and again moved for leave to proceed IFP. ECF 7, 8. The Court granted provisional IFP status and dismissed the SAC for failure to state a claim, giving Plaintiff leave to file the TAC. ECF 9, 11. Plaintiff timely filed the TAC on December 28, 2023. On January 5, 2024, the Court dismissed with prejudice Plaintiff's claims for monetary damages against Defendants Moreno and Griffin brought under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Order, ECF 13. The Court allowed Plaintiff to pursue injunctive and declaratory relief under the Eighth Amendment. Id. The Court stated, “Liberally construing the Pro se Third Amended Complaint, it appears Plaintiff intends to rely upon 5 U.S.C. § 702, 28 U.S.C. § 1361, or 28 U.S.C. § 1331 in raising his Eighth Amendment claims for declaratory and injunctive relief.” Id.
On March 14, 2024, Plaintiff filed a motion for a temporary restraining order (“TRO”), a preliminary injunction, and a protective order. ECF 22. The relief sought was transfer to a gang dropout yard. Id. The Court denied the motion on April 14, 2024. ECF 42. Plaintiff filed his Motion for Partial Summary Judgment on April 25, 2024. Defendants filed their Motion to Dismiss the TAC on April 29, 2024. The Court took the Motion to Dismiss under advisement on May 23, 2024.
STANDARDS
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(1) addresses the court's subject matter jurisdiction. The party asserting jurisdiction bears the burden of proving that the court has subject matter jurisdiction over his claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A Rule 12(b)(1) motion may attack the substance of the complaint's jurisdictional allegations even though the allegations are formally sufficient. See Corrie v. Caterpillar, Inc., 503 F.3d 974, 979-80 (9th Cir. 2007) (court treats motion attacking substance of complaint's jurisdictional allegations as a Rule 12(b)(1) motion); Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) (“[U]nlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency[.]”) (internal quotation omitted). Additionally, the court may consider evidence outside the pleadings to resolve factual disputes. Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); see also Dreier, 106 F.3d at 847 (a challenge to the court's subject matter jurisdiction under Rule 12(b)(1) may rely on affidavits or any other evidence properly before the court).
DISCUSSION
The Court concludes that Plaintiff's claim for injunctive relief, to the extent it could be granted, is moot. And Plaintiff has not exhausted administrative remedies for any claim for monetary damages based on negligence. The Court therefore dismisses this case.
I. Claim for Injunctive Relief
A. Causes of Action
Defendants first argue that Plaintiff cannot rely on 28 U.S.C. §§ 1331 or 1361 alone to establish jurisdiction. Def. Mot. 6-7. Section 1331 provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Defendants assert that § 1331 requires Plaintiff “to identify a federal law out of which his complaint arises, for a ‘suit arises under the law that creates the cause of action.'” Def. Mot. 7 (quoting Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916); see also Gunn v. Minton, 568 U.S. 251, 257 (2013)). Defendants are correct that § 1331 does not provide a cause of action. However, it does provide a basis for subject matter jurisdiction over a claim under the Administrative Procedure Act (“APA”), one of the construed bases of Plaintiff's claims. Califano v. Sanders, 430 U.S. 99, 107 (1977).
The Court held that the TAC can be construed to allege a claim for injunctive relief under the APA. Under the APA, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. The APA does not allow a plaintiff to seek money damages. Id. A plaintiff may sue under the APA to “compel agency action unlawfully withheld or unreasonably delayed.” Id. § 706(1). In the TAC, Plaintiff seeks a transfer to a different prison, a form of injunctive relief. See TAC ¶ 90.
Plaintiff also seeks expungement of three infractions from his record for failing to re-enter general population at FCI Sheridan due to his fear for his safety, a recovery of the twelve days of good time credits he lost as a result, and any other good time credits he could have received. TAC ¶¶ 91-92. His request for this relief is not properly before the Court. “Habeas corpus jurisdiction is available under 28 U.S.C. § 2241 for a prisoner's claims that he has been denied good time credits or subjected to greater restrictions of his liberty, such as disciplinary segregation, without due process of law.” Fiorito v. Entzel, 829 Fed.Appx. 192, 193 (9th Cir. 2020) (internal quotations omitted). Because Plaintiff has not filed a habeas corpus petition, the Court will not consider this requested relief in analyzing his claims.
Section 1361 provides that “[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. To invoke jurisdiction under § 1361, the plaintiff must allege that the defendant owes a ministerial duty to the plaintiff. Jarrett v. Resor, 426 F.2d 213, 216-17 (9th Cir. 1970). “Mandamus relief is only available to compel an officer of the United States to perform a duty if (1) the plaintiff's claim is clear and certain; (2) the duty of the officer is ministerial and so plainly prescribed as to be free from doubt; and (3) no other adequate remedy is available.” Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir. 1986) (internal citations and quotations omitted). If the plaintiff fails to adequately allege a duty, then the court lacks mandamus jurisdiction under § 1361. See Smith v. Grimm, 534 F.2d 1346, 1352 (9th Cir. 1976).
Defendants argue that Plaintiff cannot rely on mandamus jurisdiction because “the government owes no independent legal duty to Mr. Sierra on the current record.” Def. Mot. 7. Defendants assert that “BOP has sole discretion to designate an inmate to a particular facility and to decide whether to place the inmate in the general population or the SHU.” Id. at 10. Defendants rely on Turner v. Safley, 482 U.S. 78, 84-85 (1987), Gloor v. Hendrix, No. 3:22-cv-01190-YY (D. Or. Order May 4, 2023), and United States v. Ceballos, 671 F.3d 852, 855 (9th Cir. 2011). Turner indicated that in many cases, the federal courts should defer to prison administrators' decisions. 482 U.S. at 84-85. In Ceballos, the Ninth Circuit stated that a sentencing court “has no jurisdiction to select the place where the sentence will be served. Authority to determine place of confinement resides in the executive branch of government and is delegated to the Bureau of Prisons.” 671 F.3d at 855 (internal quotations omitted). BOP's authority is statutory. Id. (citing 18 U.S.C. § 3621(b)). The sentencing court may make a nonbinding recommendation about placement, and BOP must consider that recommendation. Id.(citing 18 U.S.C. § 3621(b)). In Gloor, another court in this district denied a federal prisoner's motion for a TRO ordering immediate transfer to home confinement, concluding that under Ceballos, the court lacked the authority to order a specific place of confinement. Order, ECF 39, No. 3:22-cv-01190-YY (May 4, 2023).
The statute provides that BOP “shall designate the place of imprisonment.” 18 U.S.C. § 3621(b). BOP also “shall” “place the prisoner in a facility as close as practicable to the prisoner's primary residence” subject to various factors such as bed availability and the prisoner's mental health and medical needs. Id. “The Bureau shall, subject to consideration of the factors described in the preceding sentence and the prisoner's preference for staying at his or her current facility or being transferred, transfer prisoners to facilities that are closer to the prisoner's primary residence even if the prisoner is already in a facility within 500 driving miles of that residence.” Id. “The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau . . . that the Bureau determines to be appropriate and suitable, considering-”
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence-
(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional facility as appropriate; and
(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28.Id. “The Bureau may at any time, having regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility to another.” Id. “Notwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.” Id.
The Court concludes that § 3621 does not impose a plainly prescribed ministerial duty on Defendants, or BOP, to transfer Plaintiff to a “dropout yard.” BOP must consider Plaintiff's concerns about his safety based on being a gang dropout because it is part of Plaintiff's history and characteristics. But the statute does not impose on BOP the duty to transfer Plaintiff out of FCI Sheridan or to a particular facility. The statute gives BOP discretion about where to place prisoners, subject to certain factors that must be considered. Any duty to transfer Plaintiff that might exist is not “so plainly prescribed as to be free from doubt.” Fallini, 783 F.2d at 1345 (internal quotations omitted). The Court lacks jurisdiction to order BOP to transfer Plaintiff to a different facility under the mandamus statute. In addition, even if there were a duty under some other statute, Plaintiff's claim for transfer is moot.
B. Mootness
In their reply brief, Defendants informed the Court that Plaintiff was transferred out of FCI Sheridan on May 8, 2024. Def. Reply 2, ECF 62. Prison records show that Plaintiff has been transferred to FTC Oklahoma City awaiting transfer to FCI Marion. Cho Decl. ¶¶ 3, 5-6, Exs. A-B, ECF 63. Defendants argue that Plaintiff's request to be transferred out of FCI Sheridan is therefore moot. Def. Reply 2.
Under Article III of the Constitution, federal courts only have jurisdiction over “cases” and “controversies.” U.S. Const. art. III, § 2. The Supreme Court has interpreted this to require “that an actual controversy ... be extant at all stages of review, not merely at the time the complaint is filed.” Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160 (2016), as revised (Feb. 9, 2016) (internal quotations omitted). “[A] suit becomes moot, ‘when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.'” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)). “If an intervening circumstance deprives the plaintiff of a personal stake in the outcome of the lawsuit, at any point during litigation, the action can no longer proceed and must be dismissed as moot.” 577 U.S. at 160-61 (internal quotations omitted). A case is only moot “when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Id. at 161 (internal quotations omitted).
Plaintiff's request for injunctive relief is moot. First, the Court lacks the power to order BOP to transfer Plaintiff to a particular facility. At most, the Court could order BOP to consider Plaintiff's status as a gang dropout in considering where to place him. See, e.g., United States v. Paige, 369 F.Supp.2d 1257, 1263 (D. Mont. 2005) (ordering BOP to consider the appropriateness of a community corrections placement as recommended by the sentencing court). Plaintiff's administrative remedy index shows that on September 18, 2023, BOP received a request for transfer. Brieschke Decl. ¶ 4, Ex. 1 at 2, ECF 54. The entry states, “gang drop out wants to be transferred for safety.” Id. Although the TAC alleges Plaintiff received no response to his communications about his fears for his safety, the record shows otherwise. It is undisputed that Plaintiff was placed in the SHU in response to his concerns about being assaulted by gang members. Although prison officials initially did not verify a threat, when Plaintiff refused to return to general population, officials submitted a transfer request, which was denied. Order 4, ECF 42. An active threat was later identified, and the transfer request was resubmitted. Id. It was pending at the time Defendants responded to Plaintiff's motion for a TRO in late March 2024. Id. By the time Defendants' reply brief in support of their motion to dismiss was filed about two months later, Plaintiff had been transferred out of FCI Sheridan. Thus, Plaintiff has already received greater relief than what the Court could order. His claim for injunctive relief, whether raised under the mandamus statute or any other statute, is moot.
II. Claims for Damages
A. Cause of Action
Defendants state that Plaintiff's claims for damages might be cognizable under the Federal Tort Claims Act (“FTCA”). See Def. Mot. 5. The FTCA gives the federal courts jurisdiction over
claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.28 U.S.C. § 1346(b)(1). The Court concludes that the TAC can be construed to assert a claim for money damages under the FTCA.
In his response to Defendants' Motion, Plaintiff states, “This is a Bivens not an FTCA.” Pl. Resp. 4-5, ECF 56. The Court has already dismissed Plaintiff's Bivens claims against Defendants Griffin and Moreno with prejudice because he cannot state a claim under Bivens. Order, ECF 13. The Court permitted the Eighth Amendment claims to proceed as claims for injunctive relief. Id. The Court here concludes that Plaintiff might be able to state a claim for damages under the FTCA. The Court expresses no opinion on the merits of the claim. As discussed below, any claim for damages under the FTCA has not been exhausted.
B. Failure to Exhaust Administrative Remedies
The Court lacks subject matter jurisdiction over Plaintiff's FTCA claim because he has not exhausted his administrative remedies. “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” Fed. Deposit Ins. Co. v. Meyer, 510 U.S. 471, 475 (1994). The United States may waive sovereign immunity and consent to suit. United States v. Mitchell, 463 U.S. 206, 212 (1983). The United States sets the terms of its waiver of sovereign immunity. See Meyer, 510 U.S. at 478 (holding that the FTCA did not waive the United States' sovereign immunity for constitutional tort claims).
“The FTCA, 28 U.S.C. §§ 1346, 2671-80, waives the United States' sovereign immunity for tort actions and vests the federal district courts with exclusive jurisdiction over suits arising from the negligence of government employees.” Junio v. Vassilev, 858 F.3d 1242, 1244 (9th Cir. 2017). The FTCA requires claimants to exhaust administrative remedies prior to bringing suit in federal court. McNeil v. United States, 508 U.S. 106, 107 (1993). A claimant must present a claim for administrative review to the appropriate federal agency within two years after the claim accrues. 28 U.S.C. §§ 2401(b), 2675(a). Then, if the agency denies the claim in writing or fails to make a final decision within six months, the claimant may file suit. 28 U.S.C. § 2675(a). Both the Supreme Court and the Ninth Circuit have strictly interpreted the requirement that the claimant present a claim for administrative review before filing suit. McNeil, 508 U.S. at 113 (holding that the presentment requirement applies with equal force to unrepresented plaintiffs in ordinary civil litigation); Vacek v. United States Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006) (stating that “the exhaustion requirement [of 28 U.S.C. § 2675(a)] is jurisdictional in nature and must be interpreted strictly”).
Defendants assert that Plaintiff “has not fully pursued administrative relief.” Def. Mot. 9. They state that Plaintiff has not exhausted his administrative remedies for an FTCA claim because the federal tort claim database shows that he submitted an administrative complaint about the handcuff incident to BOP on March 26, 2024. Id. at 10 (citing Brieschke Decl. ¶ 6). BOP sent Plaintiff a letter acknowledging the tort claim notice. Brieschke Decl. Ex. 2. As discussed above, the FTCA gives the agency six months to respond. That time has not elapsed. Plaintiff has not exhausted administrative remedies for his FTCA claim based on the handcuffing incident. To the extent he might wish to sue the United States under the FTCA for other conduct, he has likewise not exhausted his administrative remedies.
Defendants also point out that Plaintiff has not sued the proper defendant for an FTCA claim because the claim must be against the United States. Def. Mot. 7-8 (citing 28 U.S.C. §§ 1346(b), 2679(b)).
In his response, Plaintiff does not assert that he exhausted his administrative remedies. Instead, he states that prison officials refused to give him grievance forms on multiple occasions, so he could not exhaust his administrative remedies. Pl. Resp. 1. The Ninth Circuit has held that the exhaustion requirement in the Prison Litigation Reform Act (“PLRA”) is excused when prison officials prevent a prisoner from pursuing the grievance process. Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (giving examples of threats or telling a prisoner he had to wait until an investigation was complete to file a grievance as circumstances where exhaustion might be excused).Defendants did not cite or rely on the PLRA in their motion. Assuming that the exception could apply here, the record shows that Plaintiff filed an FTCA claim notice and that a letter acknowledging the claim was issued. The claim is still pending, and nothing indicates that it is not being considered. Plaintiff should not be excused from the exhaustion requirements of the FTCA. The Court lacks subject matter jurisdiction over any claims under the FTCA.
The PLRA provides: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
III. Leave to Amend
Once the period for amending pleadings as a matter of course has elapsed, “a party may amend its pleading only with the opposing party's written consent or with the court's leave.” Fed.R.Civ.P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. However, the court need not grant leave to amend where the amendment “(1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile.” AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006). “Futility of amendment can, by itself, justify the denial of a motion for leave to amend.” Gonzalez v. Planned Parenthood of Los Angeles, 759 F.3d 1112, 1116 (9th Cir. 2014) (internal quotation omitted). Amendment is futile “only if no set of facts can be proved . . . that would constitute a valid and sufficient claim or defense.” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988).
A court cannot dismiss a pro se complaint without first explaining to the plaintiff the deficiencies of the complaint and providing an opportunity to amend. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Dismissal of a pro se complaint without leave to amend is proper only if it is clear that the deficiencies of the complaint could not be cured by amendment. Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995).
The Court will not grant leave to amend because it would be futile. Plaintiff's claim for injunctive relief is moot because he has been transferred out of FCI Sheridan. His claim for damages under the FTCA has not been exhausted because his tort claim notice about the handcuffing incident is still pending, and he has not filed a tort claim notice for conduct other than the handcuffing incident. The Court will dismiss Plaintiff's claim for injunctive relief with prejudice because he has been transferred from FCI Sheridan, so any future challenge to his placement would be a new claim. The Court will dismiss Plaintiff's claims for damages without prejudice as to refiling the claims under the FTCA if Plaintiff does not obtain relief through the administrative process. Plaintiff's Motion for Partial Summary Judgment will be denied as moot.
CONCLUSION
Defendants' Motion to Dismiss [52] is GRANTED. Plaintiff's claim for injunctive relief is dismissed with prejudice, and his claims for damages are dismissed without prejudice as asserted under the Federal Tort Claims Act. Therefore, Plaintiff's Motion for Partial Summary Judgment [49] is DENIED AS MOOT.
IT IS SO ORDERED.